Lawyer who hatched a plan to throw the 2020 election to Trump pleads the 5th in Congress' Capitol-riot inquiry
- A lawyer invoked his Fifth Amendment rights in response to a
January 6 committeesubpoena.
- John Eastman's attorney sent a letter to the committee saying Eastman asserted the rights.
A lawyer and former Supreme Court clerk who advised former President Donald Trump will invoke his Fifth Amendment rights in response to a subpoena from the House select committee investigating the January 6 Capitol riot.
John Eastman's lawyer Charles Burnham sent a letter to committee's chair, Rep. Bennie Thompson, on Wednesday saying, "Dr. Eastman hereby asserts his Fifth Amendment right not to be a witness against himself in response to your subpoena."
Politico first reported the
"Members of this very Committee have openly spoken of making criminal referrals to the Department of Justice and described the Committee's work in terms of determining 'guilt or innocence,'" the letter said. "Dr. Eastman has a more than reasonable fear that any statements he makes pursuant to this subpoena will be used in an attempt to mount a criminal investigation against him."
Eastman is the second witness who has invoked or plans to invoke their Fifth Amendment rights in response to a committee subpoena. Earlier this week, a lawyer representing the former Justice Department official Jeffrey Clark informed the committee that his client would do the same. The panel said it expected Clark to come in on Saturday and formally assert his claim.
Eastman was a law professor at Chapman University and retired on January 13, a week after the deadly Capitol insurrection in which a mob of Trump supporters tried to stop Congress from certifying then-President-elect Joe Biden's victory.
Bob Woodward and Robert Costa say in their book "Peril" that Eastman sent Sen. Mike Lee of Utah a memo on January 2 falsely claiming that "7 states have transmitted dual slates of electors to the President of the Senate," who at the time was Vice President Mike Pence.
Beyond claiming with zero evidence that multiple states had sent "alternate" slates of electors to Congress, Eastman's memo went a step further and "turned the standard counting process on its head," the book adds.
In the memo, Eastman laid out six steps he said Pence could take to throw the election to Trump. One of them involved him unilaterally declaring that because of "ongoing disputes" in the seven states, "there are no electors that can be deemed validly appointed in those States."
Eastman's assertion caught the lawmaker by surprise, the book says: "Lee was shocked. ... The possibility of alternate or dueling slates would be national news. Yet there had been no such news."
The idea of "dueling electors" was previously an obscure one but gained steam in GOP circles in the run-up to January 6 as Trump advisors, pundits, and legal scholars speculated about sending an "alternate" slate of pro-Trump electors from battleground states to tilt the electoral-vote count in his favor.
Once the Electoral College has met, and each state has certified its election results, there's no constitutional provision for two slates of electors.
According to The New York Times, an alternate slate of electors has been sent to Congress only once since the Electoral Count Act of 1887 was signed into law: in 1960, when Hawaii's Republican governor sent a Republican slate of electors amid a dispute over the state's election results. But once the recount was finished and showed that the Democratic nominee John F. Kennedy had won the state's election, the governor sent a Democratic slate to Congress, which it accepted.
No such scenario existed after the 2020 election. Every US state had certified its election results, and the states to which Trump and his allies wanted to send "alternate" pro-Trump electors had certified their results for Biden.
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